Till debt do us part: Why you must divorce before suing your spouse

Caption Have you loaned your husband or wife money, expecting it to be paid back? What happens if they fail to honour the agreement and you want your money back? Well, the answer is simple: You must wait until the marriage is dissolved. A court has ruled that the only barrier to recovering a loan issued during the course of a marriage is that the couple is still legally together. "In the result, the court declines to order release of this money (which is property) for the legal roadblock that their marriage is still pending," ruled magistrate Temba Sitati. A woman, codenamed CML, sued her husband, BSK, demanding he repay Sh108,000, part of a loan she gave him to start a wines and spirits business. Testifying before Magistrate Sitati, CML said she loaned her husband Sh158,000 in 2023 based on an oral agreement that he would refund the money. She told the court that BSK paid back Sh50,000 in June last year but failed to settle the remaining Sh108,670. CMl, a civil servant, said her repeated requests for repayment were ignored, prompting her to take legal action. She backed her claims with an M-Pesa statement and formal demand letter. CML called her brother, codenamed BML, as a witness. She admitted she was still married to BSK but noted that a divorce case was already pending in court. BML told the court he was present when his sister loaned BSK the money as capital for the wines and spirits business. However, he conceded that he did not witness her physically hand over the cash. In his defence, BSK claimed CML also owed him Sh500,000, which he said he had loaned her. Yet, he could only produce evidence of a Sh4,400 transfer sent via mobile money. BSK told the court that the divorce case his wife cited had been dismissed, although he confirmed they were now living separately. He said the Sh4,400 and another Sh29,779 sent to CML were not debts but remittances made in his role as a husband. He denied ever borrowing money from her during their marriage, arguing that any funds given to him were part of matrimonial property. However, in her submissions, CML maintained there was a clear lending agreement, pointing to his earlier repayment of Sh50,000 as proof. She insisted that BSK must refund every coin she had lent him. In his counter-submission, BSK urged the court to treat the money as matrimonial property, claiming the wines and spirits business was a family investment, not a personal venture. BSK also argued that oral agreements are not legally enforceable, claiming CML failed to prove that she had made him an offer, that he had accepted it, or that any formal consideration was given. But in his judgment, Magistrate Sitati ruled that the money CML gave BSK was her personal property, acquired before their marriage. The court noted there was testimony from a third party who heard them discussing the loan, and that BSK's repayment of Sh50,000 served as acknowledgment of the agreement. Still, Sitati said the loan cannot be recovered until the marriage is formally dissolved. "The parties have no decree absolute dissolving their marriage, so the declaration cannot be enforced," he ruled. "While the court declares the money was a loan from wife to husband, the prayer for recovery of Sh108,670 is held in abeyance until the marriage is dissolved." The magistrate also dismissed BSK's claim for Sh500,000, citing lack of evidence.

Till debt do us part: Why you must divorce before suing your spouse

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Till debt do us part: Why you must divorce before suing your spouse

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